Practice Areas

Sports Betting: Coming to Virginia?

May 30th, 2018

Earlier this month, the US Supreme Court struck down a 1992 law that allowed certain states to retain their pro-betting laws, but prohibited any states without such laws from passing them moving forward. (Click here for the opinion text: Murphy v. NCAA.) With this ruling, all states now – or rather, for now – are empowered to determine whether or not to permit sports betting.

The moral, ethical and policy implications of sports gambling will be debated and evaluated in legislatures throughout our country in the months and years to come. The elected bodies must determine whether the potential economic benefits of permitting sports gambling outweigh the possible negative impacts, which include but are not limited to concerns regarding the corruption of athletics. While these debates are similar to those common prior to 1992, the proliferation of casinos and other forms of legalized gambling throughout the United States since 1992 will add a new wrinkle. Only a few states had casinos in 1992, but 39 states now have either casinos or a similar forum for legalized gambling. With a gambling infrastructure already in place, sports gambling could explode in a matter of months, if not weeks.

But states weighing the issue should be wary. The Supreme Court did not say that Congress had no authority to regulate gambling. The Court merely took issue with the way Congress’s 1992 act had gone about it. The Court put it this way: “Congress can regulate sports gambling directly, but if it elects not to do so, each State is free to act on its own.” So while the 1992 law has been wiped off the books for the time being, Congress could respond by charging into the breach with new federal legislation that could supersede any and all state laws. Anyone considering investing in a sports gambling venture might want to proceed with caution, lest the rug gets pulled out from under them by Washington. Likewise, states may wait to see if this becomes a priority in Congress before they consider taking their own actions as well.

Virginia’s General Assembly won’t convene again for purposes of considering such changes in the law until next January. By that time, we may have a better indication of whether Congress will likely seize control of the issue, or whether it will allow each state to adopt its own rules.

Historically, Virginia has been opposed to legalized gambling, but since the adoption of the state’s lottery after the 1987 referendum, that opposition has steadily eroded. An effort to support the state’s horse racing industry led to the development of Colonial Downs, with satellite (off-track) betting parlors. And even though that venture has since gone dark, a Native American tribe is even now considering exercising its sovereign rights on its reservation to open its own casino. (See3-17-18 article regarding Indian tribe’s casino plans in VA). Politically, Virginia has transitioned from a bellwether “red state” to one trending blue, or at least, turning into a “purple” or swing state. The historic social conservatism that fueled opposition to gambling has, for good or for ill, been waning. A total gambling ban is therefore far from assured. We should expect a hot debate next winter, with some expansion of permissive gambling very likely to be the end result.